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Are defamation claims on the rise?

The most recent judicial statistics revealed that there had been a 39% rise in the number of defamation claims brought before the Royal Courts of Justice in 2017.

Whilst there may be wide ranging factors that may explain the recent increase in issued defamation claims, it is undoubtedly the case that our modern technology era will have been a contributing factor, despite the test of harm being more difficult to establish for a defamation claim since the introduction of the Defamation Act 2013 ("the Act").

Whilst some individuals or businesses may understand the risks of becoming a potential defendant to defamation proceedings in publishing a statement damaging about others (and may consider they are still happy to take that risk), there are many individuals and businesses taking similar risks daily without understanding or appreciating the consequences that may follow.

Damaging statements

There are many topics discussed via internet recourses that spark public outrage and debate. These topics are commented on widely, particularly those that may surround some serious allegations against individuals and businesses. We are all at risk of a defamation claim if we decide to post something damaging without substantiation, honest belief, in the heat of the moment and without realising or understanding the consequences.

With topics such as alleged criminality of individuals and businesses being published via internet resources frequently, some social media users may feel passionate about the topic in discussion and are quick to comment.

Tweets may be submitted about a matter the user knows little about. Tweet about something that is unsubstantiated on your part at your peril. It takes seconds to submit a Tweet. That Tweet can be immediately captured by all your followers or others viewing your Twitter or other social media posts if they can do so. Once it is out there, it may be very difficult to take it back. The length of time a defamatory statement is visible will affect the amount of damages that can be pursued from it.

Action for a defamation claim must be pursued quickly and within a year.

What is defamation?

Briefly, defamation covers both words written and spoken – it includes both libel and slander. Slander is spoken and libel is a statement made in a written permanent form. A publication of something untrue about someone else which adversely affects the reputation of a person or a business by their publication could lead to an action for defamation. The claimant must show that the statement made lowers the claimant in the estimation of right thinking members of society in general.

How damaging must the statement be?

The introduction of the Defamation Act 2013 (“the Act”) made it more difficult for a claimant to succeed in a defamation claim. Section 1(1) provided the serious harm test:

(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

It was hoped by the introduction of the serious harm test under the Act that judges would no longer have to deal with the more trivial matters and statements made. The judges had initially not been backwards in coming forward in applying this new strict test and iterating the new more difficult standard that must be met (as seen in Cooke v MGN [2014] EWHC 2831).

However, the threshold appears to have been relaxed by the Court of Appeal in Lachaux v AOL (UK), Independent Print Ltd & Evening Standard Ltd [2017] EWCA Civ 1334 where the impact and standard of Section 1(1) of the Act was considered. The judgment in this case indicates that in order for a statement to be one of a defamatory nature, the statement only needs to surpass a threshold of seriousness which would have a tendency to cause substantial harm. The case provides that Section 1(1) only requires there to be a tendency to cause serious harm. This precedent set could be a factor that may lead to an increase in defamation claims.

Damages and commercial businesses?

In the case of ReachLocal UK Ltd & Anor v Bennet & Ors [2014], the High Court provided some guidance on how the damages would be assessed under the Act.

This case highlighted the impact that social media can have relating to a business and in damaging a reputation of a business. It was alleged in this case that steps had been taken to send a string of e-mails, tweets, website comments, blog posts and telephone calls to the claimant's customers. The claimant alleged that the action was defamatory.

The claimant took steps within this case to produce a spreadsheet in order to evidence which customers had terminated their business dealings with the claimant in light of the defamatory statements made.

The assessment of damages in a case like this are difficult to assess. For example, in this particular case it is difficult to evidence for certain that those customers only cancelled their business because of the damaging statements made. Mr Justice Parkes decided to decrease the figure submitted by the claimant for lost customers by 20% in order to take account of this consideration.

The Court awarded damages at £444,000.00. The Court described the conduct taken against the claimant as a "cynical and hypocritical campaign of denigration".

The damages awarded fell into the following categories:

Special damages for a public relations consultant hired to mitigate the damage caused to ReachLocal's reputation

Damages in respect of payments made to customers to ensure that contracts were not cancelled as a result of damaging statements

Special damages for loss of business

General damages for loss of reputation.

The damages awarded were good news for businesses, particularly considering that the Court awarded damages for a public relations consultant.

Businesses have to carefully prepare their evidence in order to illustrate there is "serious harm" caused and that the statement has or is likely to have caused serious financial loss.

What are the defences?

There are a number of defences to a defamation claim. The most common defences pursued are those of truth and honest opinion. However, there are additional defences as follows:

Privilege

Publication of matter in the public interest

Innocent dissemination

Consent

Operator of a website.

Rewards and remedies

The remedies available to a claimant submitting a defamation claim are damages, an interim injunction or an apology/retraction.

With the increase in social media providing a platform to stage an opinion or statement about another on a serious topic or issue, it is not surprising that despite the more difficult test of harm to be met by a claimant, defamation libel claims arising from social media are likely to be on the rise.